The Presarvation of 
Constitutional GovornLient, 
Speech of Hoh.Abraii C.Hewitt, 




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Bonk. 



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[from congressional record.] 

Preservation of Constitutional Groyernment. 

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SPEECH OP fZ,f 

HON. ABRAM S. HEWITT, 

OF NEW YORK, 
0:S THE BILL PROVIDING FOR A 

Great Commission on Counting the Presidential Votes, 

DELIVERED IN 

THE UNITED STATES HOUSE OF REPRESENTATIVES, 

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"Agree with thine adversary quickly while thou art in the way witn/J|^m."-y jm a 

VO^v * ^d^ 

Mr. HEWITT, of New York. Mr. Speaker, although 1'^^*^^^^^^ 
that this bill transcends in importance any measure which is likely 
to come before Congress during the present generation of men, if I 
were to consult my own inclinations I would be quite content to re- 
frain from taking any part in the debate, and to let the question be 
decided upon its intrinsic merits, with the clear light which has been 
shed upon it by the conclusive arguments of the members of the 
committee who have preceded me. But, unhappily, circumstances 
which I never could have anticipated, have placed me in such a 
position with reference to one of the great parties of the country as 
to give to 4,000,000 or 5,000,000 of voters the right to ask me a 
question which I am bound to answer, and I may as well admit that 
they are exercising this right with unbounded liberty by post and 
by telegraph. They have acquired this right because I have assured 
them of my belief that the election in November last resulted in 
the choice of the democratic candidates for President and Vice-Presi- 
dent. As nothing has occurred since, which could otherwise than 
strengthen this conviction, as well in their minds as in my own, 
they are naturally led to ask me why, as a member of the joint 
committee which has reported this bill I have given my assent to a 
nffeasure which departs from the " ancient ways " by which the 
result of twenty.tvvo presidential elections have been determined, 
and which, if adhered to, would surely result in the formal declara- 
tion of the election our candidates. This question I propose to 
answer fully, freely, and without any reserve whatever. 






The main opposition we had to meet in the late election was the 
intliionee of the Administration, exerted in the organization of its 
partisans, in the nse of patronage, in the control of the personal 
services of the office-holders, in^the levying of assessments, in the 
direction of the press, and in the countless other channels, which a 
party long in power knows well how to use. After their defeat in 
XovVmbeT- there still remained intact the organization, and the pow- 
erful will to direct it to its own preservation and perpetuation. The 
electoral votes necessary to insure the success of its candidates were 
claimed without delay, 'and the means taken to have them counted 
through the agency of State administrations and returning boards 
undoAhe conU-ol of the republican leaders in Florida and Louisiana. 
With the disputed vote in Oregon, 185 votes were thus nominally 
secured for Hayes and Wheeler, with prima facie certificates more 
or less regular to sustain the claim. 

I only remained to find some means by which these votes could be 
counted and declared under the existing statute regulating the time 
and manner of openingthe certificates and declaring the result. The 
plan for eftecting this object was speedily agreed upon. The twenty- 
second joint rule, under which the results of the three last presiden- 
tial elections liad been ascertained and declared, was repealed by the 
Senate. This deprived the House of the right previously existing 
to throw out the vote of a State by an objection to its validity. Thus 
the votes of Florida and Louisiana, no matter how fraudulent might 
be the returns and worthless the certificates based thereon, were 
made to secure to the republican candidate. But in order that they 
might be counted at all, it became indispensable to assert the claim 
of "the Vice-President not merely to open, but to count the votes, 
first deciding upon their validity, in all cases where there were 
duplicate certificates or disputed elections. This claim was there- 
fore promptly set up, and during this week has been boldly main- 
tained in the Senate Chamber by the men who have been most con- 
spicuous in the management of the late election. 

The scheme was thus complete for counting Tilden , out, and count- 
ing Hayes in. I became satisfied that unless this scheme should meet 
with opposition from the more conservative members of the republi- 
can party, it would be executed; that the President of the Senate 
would count the votes and declare the result ; and that the President 
of the United States would deliver up his high office to the suc- 
cessor so declared, and by the use of the troops already concen- 
trated in Washington see that he was duly inaugurated. 

Of course the House of Representatives would not be silent and 
passive spectators of this programme. They would insist upon their 
constitntioiial right to participate in the counting of the vote, the 
ascertainment and declaration of the result. They would count ^e 
votes of Florida and Louisiana for Tilden and Hendricks, and would 
record the result on the Journal and make the formal declaration of 
their election to the offices of President and Vice-President. This 
duty made incnmbent upon them b}' the Constitution and their 



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:>oaths of office they could not, from any fear of the consequences, 
V refuse to perform. 

<5^* Thus would result two Presidents and two Vice-Presidents claira- 
^ ing- each to be lawfully chosen, and demanding recognition at home 

.and abroad. 
"^■^ The logical result of such a state of affiiirsis civil war, or possibly, 
vC^'^but hardly in the light of contemporary experience among our neigh- 
bors, one or the other party might content himself by asserting his 
rights upon paper, and be satisfied with the empty honors of a, pro- 
nunciamiento. But such a course is scarcely to be expected from a 
race which carried on the wars of the Parliament, which executed 
Charles I, deposed James II, threw off its alh-giunce to George III, 
and preserved the Union against attempted secesssion, at a countless 
cost of blood and treasure. But if acquiescence were possible, it 
would not be peace, prosperity, and plenty for the people. Usurpa- 
tion never brings contentment or confidence. The spring of indus- 
try would be dried up and the fountains of capital cease to flow. 
But, what would be worse, the respect for the Constitution, essen- 
tial to free government, would be destroyed in the minds of more 
than half the voters of the country. It would be generally accepted 
that usurpation was to be the law of succession, and by common 
consent we would be glad to take refuge in military despotism as 
the only panacea " for all our woes." The experiment of free gjv- 
ernment would thus utterly fail at the close of the first century of 
its existence, thus confirming the experience of all history as to the 
ultimate decadence of free nations. 

But if the usurpation were not acquiesced in, civil. war with all 
its horrors would ensue, and the strife would penetrate into every 
household in the land. The end no man could foresee, save the 
refuge sooner or later in the all-embracing guardianship of an im- 
perial ruler. 

In either event, then, the objects which the democratic party had 
most at heart in the recent struggle would be utterly lost. These 
objects were not the election of any man to the Presidency, or the 
establishment of an}' special financial policy as contrasted with that 
of our opponent. In fact the platforms of the two parties were 
scarcely distinguishable from each other in principle. What we 
aimed to secure was — 

First. Reform in the administration by which the personal charac- 
ter it had of late years assumed should cease to exist, and public 
offices filled by men who could comprehend and act upon the old- 
fashioned principle, which has been better formulated in the con- 
stitution of Massachusetts than elsewhere within my knowledge, 
that " government is instituted not for the profit, honor, or private 
interest of any one man, family, or class of men." 

Che f econd and still more important objects, underlying indeed 
all other motives, was to preserve the Constitution from being 
destroyed by the use of the military power in the elections, or in 
the maintenance in the several States of goverment, not resting 
upon the will of the people. 



A series of statutes, doubtless the inevitable fruit of the war of 
the secession had been enacted, under color of which the Federal 
authority had been used in a manner which excited the alarm, and 
called for the condemnation of patriotic and thoughtful men without 
reo-ard to party. Especially in the State of Louisana in 1872 had 
be'en enacted a scene unprecedented in our history, filling the 
minds of men with fear for the permanence of constitutional govern- 
ment By the order of a drunken judge, signed in the dark hours of 
the night, away from the domicile of justice, the lawful government 
of a sovereign State had been rudely overturned, and the usurping 
power which had taken its place was sustained by the arm of Federal 
power, acting throu2:h tiles of soldiers invading the halls of legisla- 
tion, and drifgirinir from their seats, the representatives of a people 
to whom a rep'iiblican form of govern meiit had been guaranteed by 
the Constitution of the United States. 

The pretended and fraudulent government thus created had been 
kept in its place only by the military power of the Federal Govern- 
ment; and when once overthrown by a sudden breath of popular 
discontent, it had been promptly restored by the orders of the Presi- 
dent of the United States, through his Secretary of War, the mili- 
tary and not the judicial branch of the Government. Against this vio- 
lation of the Constitution the best men of all parties did not hesitate 
to protest, and yet, when the late election came ta pass, this fabri- 
cated government still existed in Louisiana, controlling all tbe ma- 
chinery of justice, of legislation, and of election. Its returning 
board posessed an odor peculiarly its own, with which every voter 
in the United States was familiar. Many of these who had hereto- 
fore acted with the republican party perceived, that if this practice 
of militarv interference should become incorporated, by the tacit 
consent of the people into the permanent fabric of the government, 
the Constitution would be destroyed, the principle of liberty under- 
mined, and the way prepared forthe early establishment of a mili- 
tary despotism. Hence, reluctantly, but moved by convictions of 
conscience, they joined themselves to the democratic party, and 
engaged, as they believed in a death struggle for the preservation 
of their rights and liberties. 

Now these rights and liberties, for which we had made so gallant 
and successful a fight, would equally perish whether a President 
should come in by usurpation, even if acquiesced in by the people, 
or whether, if not acquiesced in, civil war should be the result. 

There was no escape from this deplorable position except by 
agreement betv^'een the conservative and patriotic men of both par- 
ties, who prefer the good of the country to the success of party, 
upon some method by which the incoming President should be ac- 
cepted by all parties as the lawful Executive of the General G#\^- 
ernment. For one, partisan as from my position I was supposed to 
be, but patriotic as I hope henceforth to be regarded, I deemed it 
my plain duty to labor zealously toward the attainment of some just 
and constitutional plan, whereby but one President should be declared, 



and by a title which all citizens would respect, and no considerable 
number of voters would dispute. It was essential to the formation 
of such a plan that it should be constitutional ; that it should be so 
absolutely fair between the two political parties, that neither could 
possibly claim or take any advantage by reason of its provisions ; 
that the scales of judgment should be so evenly poised that the dust 
in the balance should incline the beam. Such a plan, in my judg- 
ment, the committee were able to agree upon and hava presented to 
Congress, and this plan has already received the sanction of the Sen- 
ate by a majority so overwhelming as to indicate its triumphant pas- 
sage through this House. ISTo man can predict who will become 
President by virtue of its>operation, but all men can predict that it 
will be the man who is lawfully entitled to be President. If the law 
should violate the equity of the case, it is ground for the amend- 
ment of the law, but not of rebellion against its decrees. 

The proposed plan of settlement, for it is a measure of settlement 
and not of compromise, provides for a commission ou which each 
branch of Congress and each political party is equally represented 
by five of their members to be chosen viva voce and not by the pre- 
siding officer. To these are added five men who by their elevated 
position and long service in the Supreme Court of the land have 
gained the respect and absolute confidence of the country. They 
have been long removed from the influence of party politics, and, 
holding life offices, are above all the temptations and blandishments 
of power. For them, then, there is neither-reward not higher hon- 
ors. They have already reached the summit of human preferment, 
for a great and just judge is the glory of humanity. To no men in 
history has ever been confided a greater trust than this bill proposes 
to confer, the duty of deciding between conflicting parties as to who 
shall be the ruler of forty-five millions of free people. It is impos- 
sible to conceive that such a trust shall not be faithfully discharged, 
with the eyes not only of this people, but of the whole civilized 
globe fixed upon them, and the verdict of history to be recorded on 
their action. Trusting to them as we do habitually our lives and 
fortunes, surely no man can doubt that this great duty will be per- 
formed with an eye solely to the glory of God and the good of His 
people. 

On the subject of the constitutionality of this measure it does not 
become me as a layman to say more than that I am bound to accept 
the opinion of the twelve lawyers with whom I have been associated 
on the committee, some of-them among the most eminent jurists in 
the country, that the bill is not unconstitutional. 

On the subject of the composition of the committee it is however 
proper for me to say that I found myself on a committee with 
thirteen lawyers. As a matter of course, it was to be expected that 
it w^ould be very difficult for one layman to keep straight thirteen 
lawyers, each having his own construction of the provisions of the 
Constitution on this subject. [Laughter,] I did what I could. I 
labored without ceasing to keep their minds in the right direction . 



and they assure rae — all but one — that I succeeded, and that the 
plan upon which we hav^e agreed is constitutional. 

But even if no express warrant for it could bo found in that 
instrument, it is clearly within its spirit, which we have so often 
invoked in times of peril, as when we made the Louisiana purchase ; 
when we preserved the Union against the heresy of secession ; and 
when we adopted the policy of reconstruction, rendered necessary by 
occurrences which the Constitution had never contemplated. That 
instrument declares that it was estal)lished "to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for 
the common defense, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity." Surely none 
of these ends will be gained, and they will all irretrievably perish, 
if by neglect of Congress the country is allowed to drift into civil 
war, or be ruled for four years by a President who, b\^ a majority 
of the people, will be regarded as a usurper, when, by the establish- 
ment of a fair tribunal, the questions in controversy can be settled 
to the satisfaction of the great mass of the people of this country. 

Tliere are men, it is true, who think that'the Constitution was 
not established for these beneficent purposes, so much as to give 
occasion for casuists to draw nice distinctions and for the display of 
the powers of the human intellect, just as a great German physi- 
cian frankl}' thanks divine Providence for the existence of disease, 
because it enables man to develop his marvelous skill in effecting 
cures. Doubtless when the last trump is sounded there will be 
found men splitting hairs, unconscious that the'day of judgment is 
at hand. 

So far as one can judge from public utterances, the proposed 
measure of settlement is sustained by the countr}- at large and op- 
posed onh' by the ofhce-holding and office-seeking interests. A 
hundred thousand place-holders m esse and an equal number of 
place-hunters in posse are busily attacking this bill and its authors, 
and for the same reason as did the Ephesian " worker in copper " 
the early Christians, " it threatens to spoil their trade." Whatever 
be the real motives of this class, they shoot the arrows of opposi- 
tion from behind the shield of the Constitution. Admitting the 
gravity of the situation, involving perchance war and the very ex- 
istence of the Republic, they shake their frowing heads and declare 
*' nothing can be done ; the Constitution forbids." 

A story is told of a young Oxonian, that he stood on the river's 
bank and saw a fellow-student drown without making an eflbrt to 
save him, because a formal introduction had not passed between 
them. Shall a ship be allowed to drift upon the rocks because the 
right man does not happen to be on deck to give the order to " port 
the helm?" Are constitutions intended to bo ends or means, raeana 
for the preservation of liberty and order? The iVamers of the Con- 
stitution of the United States drew in bold lines the great principles 
and framework of Government. Sensible men, they left details to 
be worked out, as occasion might arise, in the light of necessity and 



experience, by the legislative department. Thej did not cut out a 
tight, inelastic garment to tit the five millions of people strong 
along the Atlantic slope, and intend to bind the limbs and smother 
forty millions of their descendants, spread over a continent. 

Unconstitutional ! Why, the very spirit and essence, the pineal 
gland of the Constitution is in the proposed measure. The old 
Saxon love of liberty and order is there. It contains the genius of 
Magna Charta, the great petition of right, the settlement, of 1688, 
the Declaration of Independence. It substitutes law and order and 
right for strife, anarchy, and wrong. It means that whoever shall 
hold the executive otfice, shall hold it by the consent, and with the 
support of all the people of this land. It means that the wheels of 
business shall again be put in motion, and the welcome hum of vast 
industries shall again be heard, that the waiting laborer shall have 
work and his wife and children bread. It means the supremacy of 
the civil to the military power, teaching the needed lesson that the 
soldier is the servant, and not the master, of the people, who pay 
his wages, the drone in the human hive, to be dispensed with when 
he becomes troublesome to the workers. It means the preservation 
of the autonomy of the States, and the right of the people therein 
to regulute and administer their local affairs, without interference 
from any quarter. Lastly, it means oblivion of all the bitterness of 
the past, security for the present, hope for the future. 

All this and more is contained in the bill which the House com- 
mittee has reported unanimously, and to urge against it mere tech- 
nical constitutional objections, is to invite men to bind about their 
heads copies of that instrument, so as to compress their skulls into 
the shape, and reduce their intellect to the measure of those of a 
Flat-head Indian. 

One more objection and I am done. It is alleged on the repub- 
lican side that it is a measure to make Tilden President, and on the 
democratic side that it is a measure to make Haj'^es President. Can 
a greater tribute be paid to the absolute fairness of this legislation? 
For myself I frankly declare that I do not know, and have not al- 
lowed myself to speculate upon the result, except that both candi- 
dates cannot come in ; that tlie one who has been lawfully elected 
will be inaugurated, and that, while the dangers of civil war will 
thus be averted, the Constitution, and the respect for it in the popu- 
lar mind, which is essential to the preservation of that great charter 
of our rights and liberties, will not be weakened or destroyed. 

The passage of this measure of peace and conciliation will fitly close 
the great events of the first century of the Republic, and inaugurate 
that era of peace and prosperity which, if our free institutions can be 
maintained, will mark the second century of our existence as the most 
marvelous period in the history of the human race. Let it be re- 
membered that the establishment of our Government was contem- 
poraneous with the birth of chemistry, the invention of the steam- 
engine, and the declaration of Adam Smith of these principles of 
exchange between nations, which have revolutionized the commerce 



of the world, and made it possible for mankind to realize hereafter 
the doctrines of" liberty, equality, and fraternity" for which enthu- 
siasts have dreamed, and men have waited through the weary ages, 
crying out of the depths *• How long, Lord, how long? " _ With 
peace and freedom assured, the great problem of the relations of 
capital and labor, will find its solution in a land which has been en- 
dowed with a wealth of resources beyond the wildest dreams^ of 
avarice, whereof the proper development and the just distribution 
will leave no man, who is willing to labor, without the means of 
living a life worthy of the high destiny for which humanity was in- 
tended by the Great Author of its being. To this great end, the 
men who record their votes in favor of this measure will surely con- 
tribute, and be remembered, with everlasting gratitude, as statesmen 
who preferred country to part}', order to anarchy, constitutional gov- 
ernment to civil strife, and steady progress in civilization to the 
premature decay and needless destruction of the only nation with 
■whom rests, so far as human judgment can see, the present hope of 
the oppressed sons of toil, from whatever clime they may turn their 
weary gaze to this land of promise, with the unceasing prayer, 
springing from countless souls, "Peace be within thy walls, and 
prosperity within thy palaces." 



R. O. POLKINHORN, Printer, 632 and 633 D Street, Washington, D. C. 



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